DISEÑO ERGONÓMICO DE LA HERRAMIENTA

Patent holder is exclusivelly authorised to: 1. use protected invention, 2. put products made by protected invention into circulation and 3. dispose by the right. At the same time patent owner has na authority to forbid any other person to: 1. produce, offer, put into circulation or use products made by protected invention or to import or store these products for such purposes, 2. apply invented process protected by patent, 3. offer process protected by patent, 4. produce, offer, put ino circulation, use, import or store products directly originated from the process protected by patent, 5. offer or deliver products which are substantive elements of invention protected by patent if offer or delivery has been made to a person who is anauthorised to use the invention and if offerer or provider is known or from circumstances has to be known that the product intended for patent infringement.

In patent law meaning production is manufacturing namely preparation of things by shaping of material. The conception of production embraces all its phases till the moment when product is made. The conception of production does not embrace preparative actions such as purveyance of machinery or its montage as well as afterwards treatment such as repair of products made by protected invention. Power to use protected invention in production is called usage authority. In legal theory usage authority is deemed as basical, fundamental patent owner prerogative (Besarovic, 2011, p. 113).

The usage authority in the case of new process invention means the exclusive power of patentee to use the process and products made in put into circulation, offer, import and store for the purpose of putting them into circulation. In the case of invention for new appliance, usage authority means exclusive power of patentee to use protected invention for purposes for which patent is granted (Vlaskovic, 1989, p. 66).

Putting into circulation is an activity the conveyance of a product from possession of one to possession of another person is enabled by. This is any operation by which the subject matter of protected invention is made available for using (Holzer, 2002, p. 4). Putting into circulation embraces patent owner power to offer the product for selling. In patent law meaning offering is an activity by which one person declares to another about possession on product supplying, if offered person is interested in (Markovic, 2000, p. 135). It is not matter if offer is made by: advertisement, consignment of written or oral offer, consignment of call in order that called one makes an offer, presentation of goods etc. It is important that offer contains all technical data indispensable for a person skilled in that field of technology to make decision.

The power of right disposition is one of powers from the patent contents. Except with patent (and petty patent) in patent law the subject matter of disposition are: right on patent application filing and right conferred by a published patent application. Disposition can be done altogether or partially, with remuneration or gratuitously. Usually patent disposal is done by onerous contract inter vivos, as well as by succession albeit legal basis can be legal act on status modification or administrative authority decision. One of the most significant way in which patents are legally exploited is by license agreement.

"Like other forms of property, patents may be mortgaged (or assigned as security for a debt)" (Bently, Sherman, 2004, p. 552). Security rights in patents commence by virtue of written agreement or judgement or administrative decision and registration of security rights in the patent registries governed by Intellectual Property Office. Secured creditor does not become owner of encumbered asset. Owner of patents and other encumbered rights is authorised to perform its rights (in order to obtain proceeds and pay secured debt) including so called outright transfer but registration of a secured right remains effective notwithstanding to a transfer of the encumbered asset. "Patent is not less congenial or risky as collateral in comparison to things or other rights, under precondition if patent has already been commercialized that enables certain estimation of patent value" (Varga, Planojevic, 2012, p. 413).

Exclusive legal effect of patent outspreads only on territory patent is granted for. On territory where patent law protection is not obtained, everyone is authorized to use the invention without consent of inventor and without any responsibility for patent infringement. To disable this inventor must apply for patent in other countries. If succeeds, patents granted in different countries are mutually legally independent.

Not only right conferred by a published patent application but patent itself is temporary intellectual property right. In Serbian patent law, patents are granted for 20 years. This period of time is commenced from the moment of accorded date of filing. And while temporality of patents is not disputable, length of the patent time- limit is the subject matter of discussion in the patent law theory. "Basical rational parameters taken into account regarding length of patent time-limit are: average time indispensable for economic realization of average investment in average invent, as well as average technologically life-time of average invention" (Markovic, 1997, p. 264). In connection with the latter criterion there is some kind of paradox because technological life-time of average invention indicates a

shortening tendency whereas at the other side it is historically evident a tendency of a gradual extending the patent duration. The answer is that duration of patent is determind due the fact that investments in R&D increasing prolonging the time indispensable for return of invested resources and earning profit.

Patent owner of the unique invention can be either one or more persons. Plurality of patent owners can origin from R&D i.e. process to invent creation or be derived from the right of legal predecessor. First of all co-owners of patent are inventors. Inventors are physical persons which, through intellectual work, create new, non-obvious, industrially applicable solution of some technical problem. Until the contrary is proved, there is presumption that inventor is the first applicant of the invention. In the case of patent co-ownership, patent co-owners are only those inventors who created the invention working together. Those who created the same invention independently each from other will not obtain common legal protection. In that case only one of them, who filed the patent application first, shall obtain patent. (Co-) owners of patent are authorized to transfer their right to any physical or legal person. From patent (co-)owners patent can be acquired by one or more legal entities.

In the case of patent co-ownership, every patent co-owner is authorized to use the protected invention proportionally to their shares, refraining from the co- owners' right infringement. So the preliminary issue regarding the use of the protected invention by patent co-owners is determination of their aliquot shares. If they are not able to come to terms, size of the share is determined according to the criterion of "individual inventive contribution" (Markovic, 1996, p. 770). Although the conception of individual inventive contribution is not easy to specify, it is certainly characterized by intellectual creative work targeted onto problem solution (Fiser, 2006, p. 979). At the other side it means that individual inventive contribution is not given by the persons who provide technical assistance to the inventor. Moreover they are not considered as inventors at all. The conception of technical assistance is not defined by Patent Act. If individual inventive contribution of co-inventors is not possible to establish, a legal presumption of their equality in shares is applied. If plurality of patent co-owners derived from patent assignment, their shares size is determined towards share size of assignor providing that no one could assign more than owned (nemo plus iuris ad alium transfere potest quam ipse habet).

All patent co-owners participate in patent maintenance proportionally to their shares. It would be appropriate if patent maintenance fees and expenses are paid by only those patent co-owners that commercially use protected invention, proportionally to the scope of the protected invention use. Notwithstanding of the protected invention use, every patent co-owner is authorized to pay renewal fee. If renewal fee is paid by a patent co-owner who does not use the protected invention, right of recourse is obtained.

Every patent co-owner is authorized to assign their share without prior consent of other patent co-owners, but license shall be provided by common consent of all patent co-owners only (Verona, 1977, p. 42; Parac, 1984, p. 73). In conjunction to patent licence, co-owners are allowed to stipulate a different rule.

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In 2011 Patent Act is laid down special provisions regarding inventions from the biotechnology field. Biotechnological inventions are inventions which referring to a product consisting of or which contains biological material or which referring to a process for biological material generation, treatment or use. In the case of biotechnological inventions, patent owner powers relate to any biological material generated from invented biological material by propagation or reproduction, in the same or different appearance but with the same traits as invented biological material. If patent is granted for invention of product which is consisted or which contains a genetic information, patent owner powers expand to any other biological material in which the product is contained, under condition of existing of genetic information in proper funtion, excluding human body at any stage of forming and developing (including fertilized ovum) and discovery of any of his elements, including sequences or partial sequences of a gene. But, considering that in treatments for some diseases a significant breakthrough has been made due to medications based on the elements that were isolated from the human body (Besarovic, 2005, p. 69), it was laid down that an element isolated from the human body, or produced through technical procedure, including sequences and partial sequences of a gene, can be patentable, even if the structure of that element is identical to the structure of an element existed in nature (Rule 29(2) of the Implementing Regulation to the Convention on the Grant of European Patents of 5th October 1973 as adopted by decision of Administrative Council of European Patent Organization of 7th December 2006 as last amended by decision of Administrative Council of European Patent Organization of 28th October 2009). The rationale for patentability of this kind of a discovery is the fact that the element, to which discovery is referred to is made through a technological procedure of identification, purification, classification and reproduction outside human’s body, and that nature cannot perform that on her own - only human can manage something like that (Markovic, 2001, p. 709). In other words, human biological material in condition found in its natural environment and in condition where it is isolated, purified and prepared for technical appliance, from the legal point of view is not the same. The same concept goes for justification of patent law protection of chemical substances and vegetable and animal biological material (Ljubojev, Varga, 2012, p. 164). In addition it also serves for distinguishing inventions from discoveries, considering that the act of revelation itself applies only to cognition of previously unfamiliar substance or biological material in its natural environment. However, when to the act (act of discovery) are attached: isolation, filtration, cloning and other forms of adaptation, and as well, possibility of applying it for technical purposes, then the result of all that hard work can be considered to be an invention (Denoncourt, 2007, p. 109). Anyway, to get back to the issue of biological material of human character, it is explicitly stated that the industrial appliance of the sequence or partial sequence of a gene must be revealed at the very day of filling in its application. The purpose of this regulation is to prevent granting of a patent for discoveries of biological material which cannot be commercialized and are in lack of any kind of technical purpose. This proves that patentability of biological material of human origin is very delicate question of patent law. Therefore, when regulating legally this subject-matter in the boundaries of the patent law, care must be taken of, not only (patent) law, but also the interests concerning protection of human rights and environment, science development, moral, religion, and other.